This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory.

Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction.

Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In the legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This paper suggests that may not always be true.

This paper details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results.

The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero sum credibility contest in which believing the plaintiff’s story meant disbelieving the defendant’s (and vice versa). This “zero sum” effect did not appear in the control version of the trial.

In sum, the results of our experiment suggest that while prior convictions are highly noticeable and powerful pieces of evidence, they may not always be the bane that lawyers think they are. Nevertheless, the introduction of this evidence has the potential to change a civil trial by changing the juror decision-making process.

A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later.
The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.

Before one is able to understand why jury nullification is a good idea, one must understand the importance of a trial by jury. Our Founding Fathers considered them to be a powerful weapon in the war against tyranny. Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”. In the Federalist Papers, Alexander Hamilton wrote that trial by jury was the “very palladium of free government” and a “valuable check upon corruption”.

Given the strength of these opinions, then, it is no surprise that the denial of trials by jury was one of the foremost acts of despotism listed by Thomas Jefferson in the Declaration of Independence.

As for the concept that juries have not only the power but the obligation to nullify unjust rulings of a judge, John Adams wrote, “It is not only (the juror’s) right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court”.

Our Founding Fathers zealously defended this right and recognized that only an informed and empowered jury could effectively protect a defendant from the potentially harmful effects of autocratic judges. Jury nullification allows citizens to have the final say on what is fair in a court of law.

Therefore, I ask for your support of HB 315. Jury nullification is a good idea and one supported by Constitutional principles of freedom.

The
state attorney general's office opposes the bill, indicating it would lead to
“unfair and disorderly trials.” Additionally, Doug Gardner, director of
the Legislature's legal services division wrote
a memo which expressed concern that the bill may not comply with U.S.
Supreme Court precedent that "it is the duty of juries in criminal cases
to take the law from the court, and apply that law to the facts as they find
them to be from the evidence." Additionally, he
wrote another memo comparing the provisions in House Bill 315 to New
Hampshire Revised Statute 519:23-b, which is New Hampshire’s statutory
authority for jury nullification.

Passage of this bill
would result in more cases brought to trial by jury because even though the
offender does not dispute that he or she broke the law, the offender could
argue for the jury not to follow the law.

Wednesday, March 26, 2014

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.

How do you figure out what sort of job to look for? Experienced lawyers and law teachers Jennifer Fan and Deborah Maranville say the main focus shouldn't be on the substantive area (bankruptcy vs. environmental law, for instance). Instead consider

Allocution—the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing—is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions—and many others—are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains animportant feature of the criminal-justice process.

Tuesday, March 4, 2014

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.

So there's a lot going on in a lot of places. One more component is sharing information.

The Natural Resource Bank is a group of "16 leading national juvenile justice research, reform, and advocacy organizations that provide expert advice, training, and technical assistance to the core states and action network sites."

Recently Models for Change launched a Resource Center Partnership, in which four different groups focus on four areas to "provide administrators, practitioners and policymakers with technical assistance, trainings, and proven tools and resources."